United States District Court, N.D. California
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS RE:
ECF NO. 1
TIGAR UNITED STATES DISTRICT JUDGE
the Court is Petitioner Daniel Marroquin Ambriz's
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. ECF No. 1. The Court will grant the petition.
Ambriz is 36 years old. ECF No. 1-1 at 18. He entered the
United States from Mexico in 1996. Id. at 4, 8. He
has been in removal proceedings since January 23, 2013.
Id. at 92-93. Prior to that time, he had three
criminal convictions: for driving under the influence in
2004, when he served two days in jail; for theft in 2008, for
which he served another two days in jail; and for disorderly
conduct for being intoxicated in a public place in 2013, for
which he again served two days in jail. ECF No. 12-2
Department of Homeland Security initially released Marroquin
Ambriz on his own recognizance but placed him in the
Intensive Supervision Appearance Program
(“ISAP”). ECF No. 12-4. As part of his
participation in ISAP, he had to wear a GPS monitor.
See ECF No. 12-2 ¶ 10.
Ambriz was arrested again on April 10, 2015, on misdemeanor
drug charges. ECF No. 1-1 at 88. Police removed the GPS
monitor, which alerted ISAP administrators. ECF No. 12-2
¶ 10. Marroquin Ambriz was terminated from ISAP and
voluntarily reported to the ISAP office on April 13, 2015.
ECF No. 1-1 at 87. He was taken into custody by U.S.
Immigration and Customs Enforcement (“ICE”) at
that time. Id.
11, 2015, Marroquin Ambriz appeared before an immigration
judge (“IJ”) for a bond hearing, and the IJ set a
bond of $7, 000. ECF No. 12-6. He appeared for another bond
hearing on November 18, 2015, and the IJ maintained the $7,
000 bond. ECF No. 12-7. He remained in custody because his
family could not afford to pay the bond. ECF No. 1-1 at 5.
December 17, 2015, an IJ ordered Marroquin Ambriz's
removal. ECF No. 12-8. Marroquin Ambriz appealed to the Board
of Immigration Appeals (“BIA”), which granted the
appeal on June 16, 2016. ECF No. 12-9. Marroquin Ambriz was
unrepresented at the time of the IJ hearing, but his appeal
was filed by counsel. Id. The BIA found that the IJ
“erred in finding [Marroquin Ambriz] ineligible for
cancellation of removal under section 240A(b) of the Act and
voluntary departure due to his 2013 conviction” because
the evidence in the record did not indicate that his 2013
conviction was for drug possession. Id. at 4. The
BIA remanded to the IJ for further proceedings. Id.
Ambriz had another bond hearing in late July 2016 at which
the $7, 000 bond was maintained. ECF No. 12-2 ¶ 16; ECF
No. 1-1 at 5. This time, his family was able to pay the bond,
and Marroquin Ambriz was released from custody on August 16,
2016 - sixteen months after first being detained. ECF No. 1-1
December 23, 2016, Marroquin Ambriz was arrested after a
traffic stop based on outstanding warrants from the 2015 drug
charges. ECF No. 12-2 ¶ 18. His arrest did not trigger
any involvement by ICE. He appears not to have been detained
on these charges and was granted a pre-plea diversion on
March 9, 2018. ECF No. 12-11 at 3, 11. Diversion was revoked
on May 17, 2018, and the case remains pending. Id.
March 31, 2018, Marroquin Ambriz “came to the attention
of [ICE]” after he was arrested and taken into custody
for taking a vehicle without owner's consent, possession
of a stolen vehicle, and possession of a controlled
substance. ECF No. 1-1 at 83. On May 21, 2018, he was
convicted, following a plea of no contest, of taking a
vehicle without owner's consent and sentenced to 112 days
imprisonment and three years of probation. ECF No. 1-1 at 6;
ECF No. 12-11 at 15. The remaining charges were dropped
pursuant to the negotiated plea agreement. ECF No. 12-11 at
14. Marroquin Ambriz explains his conduct as follows:
I did not know that the car was stolen because my childhood
friend sold me the car and told me that it was his car. He
said someone tried to steal it so the ignition was broken and
he did not want to fix the missing ignition. I bought the car
for a few hundred dollars because the car was in bad
condition. I should have known that the car was stolen, but I
did not think that someone I knew from the neighborhood would
deceive me and cheat me.
ECF No. 1-1 at 6. He received credit for time served - 56
days - and also received conduct credit of 56 days, meaning
that he was released on the same day of his conviction. ECF
No. 12-11 at 15. Marroquin Ambriz states that one of the
conditions of his probation is to participate in an
outpatient drug treatment program. ECF No. 1-1 at 6. He was
taken into ICE custody upon his release from criminal custody
on May 21, 2018. Id. at 88.
27, 2018, Marroquin Ambriz was denied bond at a hearing at
which he was not represented by counsel. ECF No. 1-1 at 12.
Other than Marroquin Ambriz's oral testimony, only two
pieces of evidence were presented: “a letter of
acceptance to a church rehabilitation program and transcripts
from the high school he attended.” Id. at 13.
He admitted to using methamphetamine but, as the government
acknowledges, also testified that “the last time he had
used drugs was six months prior to the hearing.” ECF
No. 12 at 9 (citing recording of hearing, Ex. 1 to ECF No.
12-19). The IJ ordered that Marroquin Ambriz be detained
without bond after finding that he was a danger to property
and a flight risk. ECF No. 12-14. Marroquin Ambriz did not
appeal this bond determination.
February 14, 2019, an IJ completed review of Marroquin
Ambriz's removal proceedings following the BIA's June
16, 2016 remand and again ordered Marroquin Ambriz's
removal. ECF No. 12-15. Marroquin Ambriz states that he first
“went to court in September 2016 with my pro bono
lawyer. But later she wrote me to tell me that she could not
represent me because she was moving to another state.”
ECF No. 1-1 at 6. His counsel's motion to withdraw was
granted on June 7, 2018. Id. at 20. The record is
silent as to proceedings between September 2016 and June
2018. The government has presented a declaration stating that
the government requested a two-week continuance on June 8,
2018, for time to prepare. ECF No. 12-1 ¶ 3. After that,
the hearing was continued several times, for a total of
approximately three months, to allow Marroquin Ambriz time to
seek representation. Id. ¶¶ 4, 6-8. His
current pro bono counsel, the Office of the Alameda County
Public Defender, began representing him in September 2018 and
has continued representing him to date. ECF No. 1-1 at 12. At
counsel's request for time to prepare, the hearing was
continued another month, to October 10, 2018. ECF No. 12-1
¶¶ 10-11. On October 10, 2018, the hearing was
adjourned from the master calendar to a November 30, 2018
individual calendar hearing on the merits. Id.
¶ 12. The hearing was twice adjourned for immigration
judge reassignment, and an IJ first heard testimony on
December 13, 2018. Id. ¶¶ 12-15. The IJ
held further hearings on January 16, 2019, and February 14,
2019. Id. ¶¶ 15-16. On February 14, 2019,
the IJ denied Petitioner's application for relief.
Id. ¶ 17.
Ambriz appealed the IJ's decision on February 26, 2019,
and the BIA again granted the appeal and remanded the
decision back to the IJ on July 23, 2019. Id. ¶
18; ECF No. 1-1 at 31-32. The government did not file a brief
on appeal. ECF No. 1-1 at 31. The BIA noted:
The respondent seeks asylum, withholding of removal, and
protection under the Convention Against Torture based on a
fear of cartels in Mexico, who he asserts will target him,
with the aid of Mexican police, in order to retaliate against
the respondent's brother, a former cartel member. The
respondent testified in both 2015 and 2018/2019 in support of
his applications for relief. The Immigration Judge found the
respondent was not a credible witness, based in part on
discrepancies between his 2015 testimony and his 2018/2019
testimony. Based in part on that adverse credibility
determination, the Immigration Judge concluded that the
respondent did not meet his burden of proof for either form
of withholding of removal.
Id. (citations and footnote omitted). Marroquin
Ambriz contended on appeal that the Spanish-to-English
translation of his testimony from 2015 contained
inaccuracies, and the BIA ordered the IJ to consider this
evidence on remand and, “[i]f appropriate, ” to
allow “both parties . . . the opportunity to present
additional evidence and legal arguments.” Id.
at 32. Marroquin Ambriz's removal proceedings remain
pending before the IJ.
August 13, 2019, Marroquin Ambriz filed a motion to
reconsider his release on bond pursuant to 8 C.F.R. §
1003.19(e), which provides that, “[a]fter an initial
bond redetermination, an alien's request for a subsequent
bond redetermination shall be made in writing and shall be
considered only upon a showing that the alien's
circumstances have changed materially since the prior bond
redetermination.” He requested, based on “the
prolonged nature of his detention, . . . a bond hearing in
which the Government bears the burden of proof to establish
by ‘clear and convincing evidence' that Mr.
Marroquin Ambriz is a danger and flight risk.” ECF No.
1-1 at 18. His motion was based on his “plans to
participate in an intensive outpatient drug treatment program
upon release; positive activities while in detention,
including completion of his high school equivalency and his
role as Trustee in his pod; and hardship to his son and his
parents as a result of his prolonged detention.”
Id. It included as exhibits the BIA's July 23,
2019 remand decision; a licensed clinical social worker's
evaluation of Marroquin Ambriz; a copy of Marroquin
Ambriz's GED; a pediatrician's medical evaluation of
Marroquin Ambriz's eleven-year-old son, who is a U.S.
citizen; and eight letters of support from family members.
Id. at 28-75. Marroquin Ambriz's parents share
custody of his son with the child's mother. Id. ...